NAACP sues Betsy DeVos over COVID-19 aid rule, claiming it benefits private schools at the expense of public ones

DeVos says CARES act funds must be equally given to private and public schools.

July 22, 2020, 11:37 AM

The NAACP is joining a coast-to-coast legal fight to prevent United States Secretary of Education Betsy DeVos from siphoning away Congressionally approved emergency COVID-19 relief funds from economically disadvantaged public schools, and giving the money to private ones.

The country's largest civil rights group filed a lawsuit Wednesday in federal court in Washington, D.C., accusing DeVos of illegally changing the rules for allocating $13.2 billion in Coronavirus Aid, Relief, and Economic Security Act (CARES) money to benefit wealthy private K-12 schools.

"You literally accelerate robbing from the poor to benefit the rich," Derrick Johnson, NAACP national president and CEO, told ABC News of DeVos' plan.

The lawsuit contends that the CARES Act, which was signed by President Donald Trump on March 27, specifically says local school departments are to distribute the funds based on the number of Title I, or low-wealth students, in a particular school. Recognizing that some students from low-income families attend private schools, Congress allowed CARES money to go to those institutions that largely depend on tuition and donations.

The lawsuit claims the share going to private schools was supposed to be based on the number of Title I students attending those schools. DeVos, however, had a different interpretation of how local school districts should distribute the money, and in her "interim final rule," said the money should be shared equally with private schools based on the total number of students in those schools, regardless of how many are Title I students.

"The pandemic has harmed all our Nation's students by disrupting their education. Nothing in the CARES Act suggests Congress intended to differentiate between students based upon the public or non-public nature of their school with respect to eligibility for relief," according to a guidance document issued by the Department of Education on April 30.

The lawsuit claims the consequences of DeVos' guidance document would be that hundreds of millions of dollars in CARES Act funds instantly would be diverted from public schools to wealthy, private schools.

"The Rule is as immoral as it is illegal," the lawsuit states.

Addressing reporters after the policy was contested by public school officials following its announcement last month, DeVos said the funding is separate from other federal aid and was meant to support all students.

"There is nothing in the law Congress passed that would allow districts to discriminate against children and teachers based on private school attendance and employment," DeVos said in a call with reporters, according to the Associated Press.

After the lawsuit was filed on Wednesday, the Department of Education released a statement, saying, "It's a myth that private schools only serve one type of student."

"In fact, the vast majority of private schools serve a diverse student body, and 30% of private schoolers are people of color," the statement said. "Most private schools keep tuition low -- in many cases, far lower than the cost to educate a student in public school. In addition, sixteen states plus D.C. and Puerto Rico have programs specifically for low-income students or students with disabilities to access a private school education. Sweeping generalizations about public and private schools are often untrue and never helpful to the mission of keeping all students learning during and beyond this pandemic."

Johnson responded in an interview on ABC News' "GMA3" show Wednesday.

"We're saying give Title 1 funds to schools, both private and public in proportion with the percentage of Title 1 eligible students," Johnson said. "So, if only less than 1% of private school students are Title 1 eligible, their proportion of the funds should be provided to those schools. The Congress-provided money for education broadly, but they specifically provided a line item for Title 1 eligible students, and we're saying not to divert funds for Title 1 eligible students, for private schools who are not serving Title 1 eligible students."

The NAACP joined the class-action lawsuit as a plaintiff along with a group of parents and their children, who are enrolled in economically disadvantaged public schools. The Pasadena, California, Unified School District, the Stamford, Connecticut, School District, and the Denver County School District are also plaintiffs in the lawsuit asking for an injunction to prevent DeVos from immediately instituting her change to the rule. The lawsuit is supported by the Public Funds Public Schools, a national campaign to ensure public funds are used exclusively to maintain, support, and strengthen the nation’s public schools.

"In this moment of crushing need for America's public schools, the Rule directs public school districts to divert desperately needed CARES Act 1 funds to affluent students in private schools or face unlawful limitations on the way that those funds can be spent -- both in direct contravention of the Act," the lawsuit reads. "The Rule harms American children and subverts the will of Congress; it cannot stand."

Johnson said that if allowed to proceed, the DeVos' rule change will change public schools, including some where "80, 90 and 99%" of the students are from low-income families.

"She's trying to increase allocation disproportionately for private schools over public schools in the midst of the debate over whether or not schools should reopen. It's horrific what she's doing," Johnson told ABC News. "What will happen is you further take money away from children who are financially in need to benefit high-wealth children."

PHOTO: NAACP President Derrick Johnson faces reporters during a news conference in Boston, Dec. 12, 2019.
NAACP President Derrick Johnson faces reporters during a news conference in Boston, Dec. 12, 2019.
Steven Senne/AP, FILE

The latest legal action follows a similar lawsuit filed against the Department of Education by California Attorney General Xavier Becerra, which was joined by his counterparts in Michigan, Maine, New Mexico and Washington, D.C. The New York City Department of Education, the Chicago Board of Education, the Cleveland Municipal School District Board of Education and the San Francisco Unified School District have also joined a growing coalition asking the federal court for a preliminary injunction against DeVos' plan.

The lawsuit was filed a day after DeVos tweeted in support of South Carolina Gov. Henry McMaster's announcement that his state would be allocating $32 million of CARES Act money to fund grants for low-income students to attend private schools.

In a press release that accompanied the announcement by McMaster, a Republican, the governor's office said, "These one-time, needs-based grants of up to $6,500 will help or subsidize the 2020-21 tuition for eligible students at participating private, parochial or independent schools in South Carolina. Approximately 5,000 grants will be funded."

DeVos triggered backlash last week by saying she was "very seriously" considering withholding federal funds from schools that fail to fully reopen in the fall despite the coronavirus still sickening Americans in record numbers. In an interview on "Fox News Sunday," Trump echoed DeVos' threat.

PHOTO: Education Secretary Betsy DeVos speaks during a briefing at the Department of Education building in Washington, July 8, 2020.
Education Secretary Betsy DeVos speaks during a briefing at the Department of Education building in Washington, July 8, 2020.
Manuel Balce Ceneta/AP, FILE

"Young people have to go to school, and there's problems when you don't go to school, too," Trump said. "And there's going to be a funding problem because we're not going to fund when they don't open their schools. We're not going to fund them. We're not going to give them money if they're not going to school, if they don't open."

DeVos' rule outlines how local education departments must calculate the emergency funds to give an equitable share to students and teachers in private schools.

"There is nothing in the law Congress passed that would allow districts to discriminate against children and teachers based on private school attendance and employment," DeVos said in a statement issued with her decision.

DeVos said the new rule recognizes that CARES Act money was not exclusively meant to benefit Title I public schools, or schools with large concentrations of low-income students.

She noted that most private schools are under financial strain due to COVID-19 because they're typically dependent on tuition from families and donations from their communities. She said more than 100 private schools across the country have announced they will not be able to reopen following the pandemic because of shrinking revenue sources.

But Johnson said private schools, including charter schools, have received tens of millions of dollars in emergency COVID-relief funds, including money through the federal Paycheck Protection Program forgivable loan program.

The NAACP lawsuit references a May 5 letter to DeVos from Carissa Moffat Miller, executive director of the Council of Chief State School Officers, objecting to the rule on distributing the CARES Act money, saying the move "could significantly harm the vulnerable students who were intended to benefit the most from the critical federal COVID-19 education relief funds."

Miller said under DeVos' rule, for instance, private schools in Louisiana would receive at least 267% more funding under the Department of Education distribution formula.

Chicago Public Schools, which joined a lawsuit filed by the Michigan attorney general, said in a statement that they will lose about $10 million of an estimated $205 million they expected to receive under the CARES Act if DeVos' allocation plan stands.

"The devastation of the COVID-19 pandemic has disproportionately impacted low-income students of color and the Trump Administration is turning its back on these students in favor of wealthy private institutions by siphoning public funds away from the students who Congress intended to support," the Chicago Public Schools said in a written statement.

Johnson said the move by DeVos is consistent with her "mission to starve public education and resources to benefit private educational settings."

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